Fenn v. City of Truth or Consequences, No. 19-2201

983 F.3d 1143

Ron FENN, Plaintiff - Appellant,

v.CITY OF TRUTH OR CONSEQUENCES; Michael Apodaca, Truth or Consequences Police Captain, individually acting under the color of law; Lee Alirez, Truth or Consequences Police Chief, individually acting under color of state law; Daniel Hicks, Director of Spaceport America, Defendants - Appellees.

No. 19-2201

United States Court of Appeals, Tenth Circuit.

FILED December 29, 2020

A. Blair Dunn, Western Agriculture, Resource an Business Advocates, LLP, Albuquerque, New Mexico, for Appellant.

Matthew Zidovsky (Michael R. Heitz with him on the brief), Montgomery & Andrews, P.A., Santa Fe, New Mexico, for Appellee Daniel Hicks.

Mark Standridge (Cody R. Rogers with him on the brief), Jarmie & Rogers, P.C., Las Cruces, New Mexico, for Appellees City of Truth or Consequences, Chief Lee Alirez, and Captain Michael Apodaca.

Before TYMKOVICH, Chief Judge, LUCERO, and BACHARACH, Circuit Judges.

TYMKOVICH, Chief Judge.

The City of Truth or Consequences converted a community center for senior citizens into a visitor center operated by Spaceport America. Seeking leadership in the emerging space industry, New Mexico created Spaceport as a public agency to attract investment in a planned space launch facility near Truth or Consequences. The facility, the Lee Belle Johnson Center, contained not only Spaceport, but other tenants, including Geronimo Trail Scenic Byway and Follow the Sun Tours.

A local resident, Ron Fenn, was unhappy with this change, and beginning in 2015 he publicly protested his opposition over a period of several years. Some of his protests were inside the building and included offensive behavior and unauthorized uses of the facility. Several tenants in the building, including Spaceport Director Daniel Hicks, complained to local law enforcement about Fenn's behavior and presence at the Center. He was issued three no trespass notices pursuant to New Mexico law over that time. Finally, in June 2017, Fenn was arrested and charged with trespass. The charges were later dismissed.

Fenn sued, asserting (1) a 42 U.S.C. § 1983 civil rights claim for First Amendment retaliation against Hicks, arresting officer Michael Apodaca, and Police Chief Lee Alirez; (2) a § 1983 claim for malicious prosecution against Apodaca and Alirez; (3) claims against Truth or Consequences for supervisory liability and under Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; (4) a § 1983 claim for supervisory liability against Alirez; and (5) a state law claim for malicious abuse of process against Apodaca and Alirez.

The district court rejected Fenn's claims on qualified immunity grounds, and we affirm. The individual defendants are entitled to qualified immunity because no constitutional violation occurred. And, in the absence of a constitutional violation by Apodaca or Alirez, there is no basis for the Monell and supervisory claims. Finally, the district court correctly dismissed Fenn's state law claim for malicious abuse of process.

I. Background

As the district court noted, Fenn has "a lengthy history of being asked to leave the Lee Belle Johnson Center." App. at 112. In June 2015, a tenant at the Center asked police to ban Fenn from the premises because he was offensive and made her feel unsafe. Another tenant reported to the police that Fenn was improperly soliciting business at the Center and requested he be banned from the Center. Police were told by witnesses that while at the Center, Fenn handed out a business card that read, "Spaceport Tour Video Memory Services," and asked for donations in connection with his video services.

Apodaca and Alirez subsequently served no-trespass notices on Fenn as a result of the tenants’ requests. Fenn was later prosecuted for conducting business without a license and convicted on September 9, 2015.

Approximately a year later, someone contacted the police department and reported Fenn had entered the Center and was making "obnoxious comments." Apodaca reported to the Center and was informed Fenn had been "carrying on" about how the building was no longer being used as a senior center. Apodaca took no action against Fenn.

Apodaca responded to another call from the Center in May 2017. Witnesses reported Fenn had been on the premises yet again and was putting up posters. One tenant expressed concern that expensive items kept in the Center could be damaged or stolen, and another notified the officer she was interested in pursuing a no-trespass notice against Fenn to prevent him from returning. Around the same time, Hicks also requested such a notice on behalf of Spaceport—the first such request made by Spaceport. After collecting Hicks’ complaint, Alirez served the new no-trespass notice on Fenn.

On June 4, 2017, someone at the Center again contacted the police to report Fenn's presence inside the building. An officer responded and found Fenn inside the "common use area of the building," in an area housing a satellite library (although the library was closed at the time). The responding officer told Fenn to leave, but he refused. The officer then issued Fenn a citation for trespass, which Alirez later offered to hold in abeyance as long as Fenn committed no further violations.

Two weeks later, an officer was dispatched to respond to yet another report of Fenn's trespassing. Fenn told the responding officer he was not trespassing but protesting. Both the officer and Alirez ordered Fenn to leave, and he again refused. Alirez then arrested Fenn and a complaint was filed against him for Criminal Trespass pursuant to N.M. Stat. § 30-14-1(C).

In the criminal case, Fenn filed a motion to dismiss for failure to establish essential elements of the offense. The motion was denied after a hearing. The criminal case, however, was later dismissed without prejudice and never refiled. In the dismissal papers, the district attorney stated the charges were being dismissed because there was "insufficient evidence to proceed with charges at this time." App. at 117.

II. Analysis

Fenn argues that all of his claims should be allowed to proceed to trial. We disagree, concluding the district court properly granted qualified immunity on Fenn's § 1983 claims of First Amendment retaliation and malicious prosecution. Fenn did not establish the elements of these constitutional claims. And because those claims fail, his claims for supervisory liability against Alirez and for Monell liability against the City also fail. Finally, Fenn's state claim for malicious abuse of process fails because he cannot show the criminal complaint was unsupported by probable cause.

We review de novo a district court's dismissal of an action under Rule 12(b)(6), as well as a district court's grant of summary judgment under Rule 56. Khalik v. United Air Lines , 671 F.3d 1188, 1190 (10th Cir. 2012) (Rule 12(b)(6) dismissals); Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999) (grants of summary judgment).

Defendants here raised a defense of qualified immunity, "which shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law." T.D. v. Patton , 868 F.3d 1209, 1220 (10th Cir. 2017). "Once an individual defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." Gutierrez v. Cobos , 841 F.3d 895, 900 (10th Cir. 2016) (internal quotation marks omitted).

We consider each of Fenn's claims in turn.

A. First Amendment Retaliation

Fenn argues that he has sufficiently alleged the violation of his First Amendment right to peaceful assembly and protest, and that the district court erred in concluding otherwise. We disagree.

To prove a claim of retaliation for the exercise of First Amendment rights, Fenn must establish: (1) he was engaged in constitutionally protected activity; (2) that Defendants’ actions caused Fenn to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the Defendants’ adverse action was substantially motivated as a response to Fenn's exercise of constitutionally protected conduct. Nielander v. Bd. of Cty. Comm'rs , 582 F.3d 1155, 1165 (10th Cir. 2009).

Fenn has failed to establish a violation of his First Amendment rights for two reasons. First, he has not shown he was engaged in constitutionally protected activity because the Center is not the type of public forum in which the government must allow picketing and other forms of protest Fenn claims to have engaged in. "Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of government property without regard to the nature of the property." Cornelius v. NAACP Legal Def. & Educ. Fund , 473 U.S. 788, 799–800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The Center is a city-owned building, leased to various entities, and we conclude it is a nonpublic forum. In contrast, traditional public fora are places that "by long tradition or by government fiat have been devoted to assembly and debate," such as streets, sidewalks, and parks. Perry Ed. Ass'n v. Perry Local Ed. Ass'n , 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

Our case law illustrates this distinction.¹ In Hawkins v. City & County of Denver , 170 F.3d 1281, 1287–88 (10th Cir. 1999), we held that the main walkway of the Denver Performing Arts Complex, which the city leased to several commercial and public agency tenants, was not a traditional public forum despite its high volume of public traffic. We explained that although the walkway was generally open to the public, "[p]ublicly owned or operated property does not become a public forum simply because members of the public are permitted to come and...